Key Insight: whether stating that “ESI request is not relevant or proportional” is not sufficient.
Nature of Case: breach of contract
Electronic Data Involved: emails
Keywords: informal internal emails
Identified State Rule(s): D. Kan. 37(2)
Key Insight: Proportionality, Fraud
Nature of Case: Non-compete enforcement
Electronic Data Involved: scope of discovery
Keywords: Sedona principles
Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016)
In this case, the court heard argument regarding Defendant’s alleged spoliation in October, 2015—before amendments to the Rules of Civil Procedure went into effect—and deferred ruling on the motion until the end of trial. The amendments became effective “shortly after trial concluded.” Upon determining that “applying the new version of Rule 37(e) would be neither unjust nor impractical,” the court found that Defendant failed to take reasonable steps to preserve the information at-issue, despite a duty to do so; that the lost information could not be restored or replaced through additional discovery; and that Defendant acted with the intent to deprive Plaintiffs of the information’s use in the litigation. Accordingly, the court presumed that the lost information was unfavorable to the defendant. The court also noted that the sanction would be appropriate under prior standards, specifically pursuant to the court’s inherent authority to sanction a party’s bad faith litigation conduct.
Key Insight: Defendant alleges Plaintiff failed to produce documents and requests sanctions, including dismissal.
Nature of Case: Employment discrimination
Electronic Data Involved: ESI and scanned PDF documents and other documents.
Keywords: Proportionality, motion to compel (not filed)
Key Insight: Court concluded defendant had duty to preserve oily substance and was negligent in doing so. Permissive adverse inference instruction granted.
Nature of Case: personal injury
Electronic Data Involved: oily substance plaintiff slipped on
Keywords: adverse inference;
Key Insight: not ordered to reproduce production of documents in native format (with metadata) but only categories specifically requested by plaintiff
Nature of Case: wrongful termination – contract
Electronic Data Involved: email
Keywords: native format
Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-cv-01734-WTL-DML, 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016)
In this case, the court granted Plaintiff’s motion for a protective order and ordered that Defendant was prohibited from obtaining the discovery sought from Plaintiff’s shareholder by the at-issue subpoenas. In reaching its conclusion, the court undertook analysis of recently-amended Fed. R. Civ. P. 26(b)(1), highlighting the principle of proportionality, and ultimately concluded that Defendant’s subpoenas constituted “discovery run amok” and “fail[ed] the proportionality test under Rule 26(b).”
Key Insight: Concealment and use of electronic evidence improperly obtained by a client.
Nature of Case: Divorce.
Electronic Data Involved: Email, hacked and stolen from the wife’s private email account.
Keywords: Unwarranted intrusions into privileged relationships. Stolen evidence.
Identified State Rule(s): 4-4.4(a); 4-8.4(c); 4-3.4(a)
Key Insight: No sanctions when electronically stored information is lost during ordinary course of business.
Nature of Case: Sanctions
Electronic Data Involved: electronically stored information
Keywords: Safe harbor, Rule 37(e), good faith, normal course of business, spoiliation
Key Insight: Plaintiff unsuccessfully seeks injunction to prevent destruction of certain evidence. Defendants argued that sanctions would be inappropriate and no spoliation had occurred.
Nature of Case: Inmate pro se plaintiff asserts a host of constitutional violations against the U.S. and individual prison personnel.
Electronic Data Involved: Deleted video footage.
Keywords: Failure to preserve, destruction of evidence, spoliation, adverse inference.
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